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2 Frame v. Dawson, 14 Ves. 386. ^ Carlisle v. Fleming, 1 Harr, 421,
See Lyndsay v. Lynch, 2 Scho. & Lef. 430.

14



!.'>* LAW OF VENDORS AND PURCHASERS. (OH. IX.

conveyance to take effect at his death. Hence, w^here a bill,
brou'ifht by the son to enforce the agreement, set it forth as
above stated ; held, the plaintiff's possession, during the
father's life, was not a part-performance.

22. Verbal agreement, that A. will convey a tract of land,
and pay a sum of money, to B., in consideration that B. shall
make a deed, confirming the sale of another tract to C.
Held, the execution of the deed of confirmation was not such
a part-performance, as made the contract binding upon A.^

23. A parol sale, upon which money has been paid, and
possession delivered, is not good against a bond fide pur-
chaser, without clear evidence of notice to him, either actual
or legal. Legal notice exists, only where there is a violent
presumption of actual notice. Undisturbed possession has
ll^nerally been considered legal notice ; but it must be clear
and unequivocal. Thus, A. bought by parol from B. a corner
of B.'s tract, paid for it, was put into possession, and had
buildings erected, but there was no survey of the part, or
other admeasurement. On B.'s part there were a forge,
dwelling-house, grist and saw mill, and buildings for the
workmen, which, with A.'s buildings, might strike the eye as
one establishment. Held, the possession of A. was not legal
notice of his title, to a purchaser at sheriff's sale, under a
judgment against B. ; particularly if A. gave no actual notice
of his title, when he probably knew of the judgment, execu-
tion and sale.2

24. It requires to be further stated, that, although the gen-
eral doctrine as to part-performance has been for the most
part recognized, with other principles of the English law, in
the United States ; yet it has not been universally adopted.
Thus, in Massachusetts, where there is no Court with full
equity powers, there has been a series of cases, all tending
to the conclusion, which seems now finally established, that
part-performance does not take a parol contract relating to



1 Chambers v. Lecompte, 9 Missouri, ^ Billington v. Welsh, 5 Binn. 131.
566.



CH. IX.] PART-PERFORMANCE. 159

lands out of the Statute of Frauds, Any earlier decisions,
which may have incidentally recognized the contrary doc-
trine, may be considered as now overruled. Thus it is held,
that, although a defendant in equity may rely upon a verbal
agreement, for the purpose of showing that it would be in-
equitable to enforce specific performance of a written one ;
the Court have no power to decree specific performance of
a contract, unless every part of it has been reduced to writ-
ing.' So, in a case of assumpsit, to recover money alleged
to have been paid on a consideration which has failed. The
money was. paid, on a parol agreement to purchase of the
defendant a certain house and estate, which were to be con-
veyed to the plaintiff free of incumbrance, the defendant
undertaking to discharge a mortgage on the estate, which
was subsequently done, but, before the estate was conveyed
to the plaintiff, the house was consumed by fire. It was
held, that the contract was void by the Statute of Frauds,
that the payment of the money did not take the case out
of the statute, that the loss must fall upon the defendant, no
actual conveyance having been made, and neither party in
fault, and that the plaintiff was entitled to recover.^ And,
in a very late case, where the general question was more
distinctly presented than in any preceding one,3it is expressly
decided, that part-performance does not, in Massachusetts,
take a case out of the statute. Bigelow, J., says : * " This
Court has no power to enforce in equity the specific perform-
ance of any but written contracts. The ground on which
Courts having full chancery powers have interfered to enforce
parol contracts concerning the sale of lands which have been
partly performed, has been to furnish remedies against fraud,
and not because the contracts, as such, were binding on the
parties. Such cases are not within the equity power of this
Court." The same point h#fe been settled, upon similar



' Brooks V. Wheelock, 1 1 Pick. 4.38. ^ Jacobs v. The Peterborough, &c., 8

2 Thompson v. Gould, 20 Pick. 134. Cush. 22.3.

* Ibid. 225.



160 LAW OP VENDORS AND PURCnASERS. [CH. IX.

grounds, in Maine.' So, it is said to be the settled doctrine
in Mississippi, that part-performance will not take a parol
sale of lands out of the Statute of Frauds, and that no
exceptions of that character will be ingrafted on the statute.^
So it is held in Tennessee, that a Court of Equity has no
power to relieve against the provisions of a statute in any
case ; that parol proof is inadmissible, to establish a contract
required by statute to be in writing; or to show part-per-
formance, from Avhich the contract may be inferred. The
rule is adopted, without qualification, that to make a con-
tract for the sale of land valid, it must be in jkVriting, and
signed by the party to be charged therewith.^ In New York
it was early held, that a contract cannot rest partly in writ-
ing and partly in parol ; that, where a part-performance is
set up, the party cannot resort to parol evidence in aid of
the written agreement ; but the terms must distinctly appear,
or be made out to the satisfaction of the Court."^ So, in
New York, it is held, that the rule of the Court of Chancery,
by which parol contracts for the sale of real estate are taken
out of the Statute of Frauds by a part-performance, ought
not to be extended to new cases, which do not come clearly
within the equitable principles of the previous decisions on
that subject.'^ So in Pennsylvania it was early held, that
possession alone will not take a case out of the act against
frauds, &c. ; though it is a strong circumstance connected
with others.^ Thus, possession begun before a parol agree-
ment of lease for seven years, and continued afterwards, is
of too doubtful a nature to be considered as part-perform-
ance.'^ And, in a much later case, it has been decided, that
the delivery of possession of part of the property, in compli-
ance with a parol contract for the sale of land, is not such

' Bubier v. Bubier, 24 Maine, 42 ^ ^ German v. Machin, 6 Paige, 289,
Wilton V. Harwood, 23 Maine, 131. • 293.

2 Beaman v. Buck, 9 Sm. & M. 207 ; ^ Bassler v. Nieslar, 2 S. & R. 355.
Box V. Stanford, 13 Sm. & M. 93. "^ Jones v. Peterinan, 3 Serg. & Kawle,

3 Patten V. M'Clure, M. & Y. 333. 543. So in Indiana ; Johnston v.
* Parkhurst v. Van Cortlandt, 1 Glancy, 4 Blackf. 94 ; and in Hatcher

John. Ch. 274. v. Hatcher, 1 M'Mul. Eq. 311.



CH. IX.] PART-PERFORMANCE. 161

an execution of it, as will take it out of the Statute of Frauds
and Perjuries.' But the doctrines of the English Chancellors
concerning part-performance have finally been adopted as the
law of Pennsylvania, under the Act of Assembly against
frauds and perjuries, notwithstanding the omission in the
latter of the 4th section of the English statute.^ And the
rule elsewhere adopted seems to be finally established, that,
to take a case out of the statute, there must be possession,
and such part-performance, as cannot be compensated in
damages;^ and also exclusive possession.* Thus, the plain-
tiffs claimed under the will of their grandfather ; the defend-
ants under a parol gift or contract between their father and
grandfather. Held, under the Statute of Frauds, the defend-
ants had the burden of proof, that the contract was made ;
the land clearly designated ; open, notorious, and exclusive
possession taken and maintained under and in pursuance of
the contract ; and that they had made improvements which
did not admit of pecuniary compensation.^ So, in North
Carolina, part-performance, such as payment of the whole
purchase-money, and delivery of possession to the vendee,
will not dispense with a writing, if the statute be insisted
on, nor admit parol proof of a contract, different from that
stated in the answer.^ (a)

25. It has been seen, (s. 17,) that part-performance is held
to take a parol contract out of the statute, on the ground
of f 7' aud0 in the absence of which, actual or constructive,
equity will not interfere to enforce the contract, though in
part executed. It is further held, that specific execution of
a parol contract for land will not be decreed, where its opera-
tion would be harsh on any person concerned. But, if

' Allen's Estate, 1 Watts & S. 383, * Blakeslee v. Blakeslee, 22 Penn.
385. 237.

2 Pugh V. Good, 3 Watts & Serg. ^ Moore v. Small, 19 Penn. 461.

56. 6 Allen v. Chambers, 4 Ired. Eq. 125 ;

3 Moore v. Small, 19 Penn 461. Ellis v. Ellis, 1 Dev. Eq. 180, 341.

(a) Whether it would be otherwise, if the contract partly performed were
admitted by the answer. Qu.? Ellis v. Ellis, 1 Dev. Eq. 341.
14*



162 LAW OF VENDORS AND PURCIIASERS. [cn. IX.

specific execution is refused, for any cause, the Court will
decree compensation to a party, who may have expended his
money on the property of another, on the faith of such con-
tract.^ Thus, the defendant agreed to assign a term of years
in his house and certain goods, for 200 guineas, paying one
in hand as earnest, and, three days after, nineteen more ; and
it was also agreed that the bargain should be put in writing
by a certain time. Bill for specific performance. Plea, the
Statute of Frauds, and that the money was only paid for
the lease, but confessing the receipt of the twenty guineas,
and offering to repay them. The plea was overruled, but it
was held to be clear that the defendant ought to repay the
money.2 go^ ^j^g defendant agreed to give the plaintiff" a
lease, rendering rent, the plaintiff" paying £150 fine. The
plaintiff" paid .£100, but the defendant refused to perform the
agreement. Upon a bill filed for specific performance, held,
the agreement was within the statute, but the £100 was
decreed to be refunded.^ So, in New York, where, as has
been seen, the general doctrine of part-performance has not
been fully adopted, if possession has been taken, and lasting
improvements made, under an imperfect agreement ; though
the Court will not grant relief, on the ground of part-
performance, yet the bill will be retained, for the purpose of
a reasonable compensation for such improvements."^ Thus,
commissioners, under an act of the Legislature, were held
to have no right to use the lands of the plaintiff"^r to re-
move or destroy his property, without a valid and legal
contract with him for that purpose, or until compensation
had been made and tendered to him according to the act.
And though a bill filed against the commissioners, to enforce
a parol contract for compensation, could not be sustained, as
being within the statute ; yet the Court retained the bill,
and awarded an issue of quantum damnijicatus, to assess the

1 Anthony v. Leftwich, 3 Rand. 238, ^ Lord Fingal v. Ross, 2 Eq. Cas.
246. Abr. 46, pi. 12.

■■2 Leak v. Morrice, 2 Cli. Cas. 135. * Parkhurst v. Van Cortlaudt, 1

John. Ch. 274.



CH. IX.] PART-PERFORMANCE. 163

damages, as the plaintiff had no remedy, or at best a doubt-
ful and inadequate one, at law.^ So it is held in North
Carolina, that, although payment of the purchase-money,
taking possession, and making improvements, will not entitle
the vendee to specific performance ; yet he has in equity a
right to an account of the purchase-money advance^ and
the value of his improvements, deducting therefrom the an-
nual value during his possession.^ But a later case decides,
that, although in case of part-performance, if the defendant
admits the contract, as stated by the plaintiff, and the part-
performance, but relies on the statute, the Court will order
an account, and decree compensation ; if the contract is
denied, the Court can grant no relief, because it can go into
no proof of a contract, variant from that stated in the
answer.^

' Phillips V. Thompson, 1 John. Ch. ^ Dunn v. Moore, 3 Ircd. Eq. 364.
' 131, 149. Allen v. Chambers, 4 Ired. Eq. 130.

2 Albea v. Griffin, 2 Dev. & Batt. Eq.
9 ; Baker v. Carson, 1 lb. 381.



164 LAW OF VENDORS AND PURCHASERS. [CH. X.



• CHAPTER X.

CONSTRUCTION OF CONTRACTS.

1. General rules. I 13. Separate instruments.

6. Certainty. |

1. Having considered the elements and requisites of a
contract for the sale and purchase of lands, we now proceed
briefly to speak of the constniction of such contract. In this
connection, the agreement itself is assumed to be, as the
Statute of Frauds requires, in writing, and the present in- •
quiry therefore involves the important subject of the admis-
sibility of parol evidence, in reference to such written agree-
ment.

2. It is a general rule, that words shall be so construed as
to have some meaning, rather than rejected. Thus, where a
vendor proposes a price, clear of all expenses, the agreement
is construed to mean that the purchaser shall bear the ex-
pense of making out the title ; the law imposing on him the
expense of the conveyance.'

3. The meaning of words may be determined by the
nature of the subject to which they relate. Thus, in case of
a purchase of a rectory for " the use of the parishioners and
inhabitants,^^ the Court suggested various senses of the term
"inhabitant," with reference to the nature of the subject.^

4. A. contracted to sell and plant a quantity of trees on
B.'s land ; and also, that he would keep in order the trees
aforesaid for two years, and replace such as should die during
that period "except from injury by sheep, game, or cattle."

1 Stratford v. Bosworth, 2 Vcs. & ^ Attorney-General v. Foster, 10 Ves.
Bea. 341. 335.



CH. X.] CONSTRUCTION OF CONTRACTS. 165

In an action to recover the price, held, the words " keep in
order" meant, not to prune only, but to weed and clear the
ground, (a)

5. A stipulation was made, in articles before marriage,
that the intended settlement, which related to estates in
Ireland, should contain all the covenants, provisions, and
conditions, usually contained in marriage settlements made
in England. Held, to authorize the insertion of a power of
sale and exchange, under which lands in England might be
taken in exchange for lands in Ireland. A reference was
made to the master, to inquire whether certain proposed
powers of leasing were usual in that part of Ireland where
the estates were situated, and whether any circumstances
connected with the property rendered such powers expedient,
and to the interest of all parties, with liberty to state special
circumstances.^

6. With regard to the construction of contracts for the
sale of land, the same reasonable certainty (b) is required
to render them valid, as in the case of other written agree-
ments. And where a party has failed to prove the terms
of the agreement relied on, equity will not assist him,
by directing an issue to ascertain the terms. A plaintiff is
bound to state in his bill the agreement relied on, and to
prove it as stated.^

7. An agreement to sell land, generally, means the whole
interest of the vendor.^

8. An agreement in writing, for the sale of a house, did
not, by description, ascertain the particular house, but re-
ferred to the deeds, as in possession of a person named.

' Bedford v. Abecorn, 1 Myl. & Cra. ^ gavage v. Carroll, 2 Ball. & Beatt.
312. 444.

3 Bower v. Cooper, 2 Hare, 408.

(a) Also, that evidence of non-performance by A. of any part of the con-
tract on his part was admissible in reduction of damages. Allen v. Cam-
eron, 1 Crompt. & Mees. 832.

(b) Whether the purchase of a good will falls within this requisition, see
Coslake v. Till, 1 Russ. 376.



166 LAW OP VENDORS AND PURCnASERS. [ciI, X.

Held, tlic agreement was sufficiently certain, if it could be
ascertiiincd by an inquiry before the master, that these deeds
referred to the house.'

9. In a contract for the conveyance of land, the land was
described as " lying on the southwest side of Black River,
adjoining the lands of William liaflland and Martial."
Held, the description was sufficiently certain to entitle the
vendee to a specific performance.^ So, where a contract of
sale described the land, as lying in a certain town, county
and State, and the 240 acres owned by the vendor ; held, suf-
ficiently certain.*^ So, the certainty of a contract may in part
depend upon some subsequent act of the vendee. Thus, in
case of a bond, conditioned to convey a certain quantity of
land in one, two, or three surveys, at the election of the
obligee ; held, the selection must be made, and the land sur-
veyed, before any obligation arose to convey. There being
a latent ambiguity in the description, which could be ex-
plained only by an actual survey ; held, the contract could
not be rescinded before such survey, showing whether the
bond could be complied with.^

10. But where A. and B. agreed in writing, that A. had
sold to B. " all that part of a tract of land called C, lying
adjoining the turnpike road near where D. now lives at,
&c. ; " held, this agreement contained no sufficient descrip-
tion of the land, the bounds and quantity being both uncer-
tain, and could not be enforced any further than as admitted
by B.'' . So, a contract for a lease of " coals, &c.," or " min-
erals," is too ambiguous to be carried out by the court.^
So, upon the ambiguous terras of a contract, as including or
excluding the timber, the purchaser's bill for specific perform-
ance was dismissed ; and, having throughout insisted upon
his construction, held, he could not compel the vendor to
convey, upon the terms he originally offered."

1 Owen V. Thomas, 3 My. & K. 353. ^ Dorsey v. Wayman, 6 Gill, 59.

2 Kitchen v. Herring, 7 Ired. Eq. " Price v. Griffith, 8 Eng. L. & Eq.
190. R. 72.

3 Richards y. Edick, 17 Barb. 260. ' Clowes v. Higginson, 1 Ves. &
* Purcell V. M'Glearv, 10 Gratt. 246. Bea. 526.



CH. X.] CONSTRUCTION OF CONTRACTS. 167

11. Lessees of a' coal mine covenanted with the lessors,
that they would, by a certain time, get all the demised coal
in the township of B., " not deeper than or below the level
of" the bottom of the A. mine, under a c^ain point at the
surface. In an action upon the covenant, a question arose,
whether " level" was used in the ordinary sense of a horizontal
plane, or in a peculiar sense, having reference to the drainage.
Held, that evidence was admissible, to show the understand-
ing of the term " level," used as in the above lease among
coal miners. It was referred to an arbitrator to receive such
evidence and state a case for the opinion of the court. He
found, that the mine was situate within an extensive coal-
mining district in the county of Lancaster, and that, " ac-
cording to the custom and understanding of miners through-
out that district," the terms " level," " deeper than," and
" below," signified, &c. ; stating the construction of the
terms, which was in favor of the defendant. It did not ap-
pear, as to some of the parties to the lease, that they re-
sided within the district, and they were named, in the lease,
as of other places. Held, the existence of the custom in this
district did not raise a conclusion of law, that the parties
used the terms accordingly, but was only evidence for a jury ;
and that the court could not give judgment for the defend-
ant ; although, it seems, they might have done so, if the arbi-
trator had found the custom of miners without limitation.^

12. The defendant agreed to sell the plaintiffs, a railroad
corporation, " the land they might take on the northerly side
of the M. turnpike, adjoining T.'s land, at twenty cents per
square foot, for each and every foot so taken by said com-
pany." Bill for specific performance. Held, not a sale of the
land generally, or of such part of it as the plaintiffs might
elect, or of such as they should accept the offer of ; but of
such part as the plaintiffs might take in the exercise of the
authority conferred on them by law.^

1 Clavton V. Gregson, 5 Adol. & Ell. ^ Boston & Maiue Railroad v. Bab-
302. " . ' cock, 3 Cush. 228.



1G8 LAW OF VENDORS AND PURCHASERS. [ciI. X.

13. It has already been seen (ch. 2,) that a contract may
consist of separate writings, as well as a single instrument,
provided they mutually refer to each other. Of course, a
contract thus dBde is also to be construed like one entire
agreement. Thus, it was agreed, that for a sum to be fixed
thereafter, a lessee would assign his lease, and the furniture
and good-will of the property, reserving a certain part. Sub-
sequently, on receipt of this sum, a bill of sale was made of
all the above interests, without reservation. Held, the two
instruments were to be construed together, and the reserva-
tion still took effect.' So, equity will enforce a written
agreement to convey, though accompanied by another writ-
ten agreement, that the party will forfeit a certain sum, if he
does not convey ; the plaintiff showing performance of the
terms on which such conveyance was to be made.^

14. A vendor, A., wrote thus to his own solicitor, " B. has
agreed to purchase my estate in this county for X 60,000, in-
cluding the timber. I have shown this to B., and given him
a copy, not signed as a memorandum." A month after-
wards, in the course of correspondence concerning the terms
of a formal agi-eement, B. wrote to the solicitor, " I beg to
know when you will forward the agreement to be entered into
with A., relative to the purchase I have concluded with him
for his estate in this county." Held, the letters, agreement,
and memorandum constituted a contract, binding on both
parties, and vested a devisable interest in B.^

15. But where terms of sale are stated in connection with
one mode of transfer, and the sale afterwards takes place in
another mode, such terms will not bind the purchaser. A.
and his agent attended an auction for the sale of a house,
and had notice of certain conditions there exhibited. A.,
afterwards, through his agent, and the agent of the vendor,
purchased the house. Held, he was not bound by the par-



1 Beman v. Green, I Duer, 382. ^ Morgan v. Holford, 17 Eng. L. &

2 Doolcy V. Watson, 1 Gray, 414. Eq. 174.



CH. X.] CONSTRUCTION OF CONTRACTS. 169

ticulars.^ So, in order to connect different instruments as
constituent parts of one contract, the parties must be the
same. Thus, A., by an instrument under his hand and seal,
acknowledged the receipt of $100 from B., \vhich he prom-
ised to pay out in the purchase of land in Michigan or
Illinois, and to procure deeds of the same ; pay three and a
half per cent, interest, and act for the mutual interest of both
parties ; and C, on the same day, and on the same piece of
paper, by an instrument under his hand and seal, covenanted
and guaranteed the fulfilment by A. of the said agreement.
Held, a joint action against .^Aand C, for breach of the
original agreement, could not beiRlstained. Held, also, that
the original agreement, and the guarantee, were different
contracts, and could not be united in the same action at
common law, nor under § 120 of the code of procedure.^

16. In some cases, a writing may undoubtedly be con-
trolled or explained, as well by a map or plan, with refer-
ence to which the contract is made, as by another accom-
panying instrument. But it is held,-^ that the mere exhibition
of the plan of a new street, at the time of the sale of a piece
of ground, on which to build a house in the line of the in-
tended street, does not of itself amount to a warranty or
engagement, that all which is exhibited on the plan shall be
done, more especially where the purchaser has a distinct
contract put into the solemn form of a chartfer containing no
such stipulation. Thus, where the governors of Heriot's
hospital, and the magistrates of Edinburgh, in selling certain
lots of ground for building, in the line of an intended new
street, (York Place,) exhibited a plan of the street, and some
of the surrounding objects, which represented, or was sup-
posed to represent, certain old buildings, (not belonging to
the vendors,) as taken down, so as to make the street of
equal breadth through its whole extent, though the fen
charters granted to the purchasers contained no obligation

1 Cowley ?;. Watts, 17 Eng.L. & Eq. ^ j^oeffees of Heriot's Hospital v.
147. Gibson, 2 Dow. 301.

2 De Ridder v. Sehermerhom, 10
Barb. 638.

15



170 LAW OF VENDORS AND PURCHASERS. [OII, X.

on the grantors to purchase and remove these old houses;



Online LibraryFrancis HilliardThe law of vendors and purchasers of real property → online text (page 18 of 77)